V. VENUE

217

Rule 21: Change of Venue.

(a) Grounds for Change. The court may change venue of a criminal case on the defendant’s motion or on its own initiative with the defendant’s consent. The court should order a venue change when a fair trial is unlikely because of undue excitement against the defendant in the county where the offense was committed or for any other cause.

(b) Motion and Affidavit. A defendant’s motion for change of venue shall be accompanied by affidavit(s) averring facts constituting the alleged undue excitement or other cause on which the motion is based. The state may file counter-affidavits.

(c) Timing of Motion. A motion for a change of venue shall be made at the earliest date after which the cause for the change of venue is alleged to have arisen.

(d) Location of New Venue.

(1) Multi-County Circuit. In a multi-county judicial circuit, the court shall change the venue to the nearest county in the judicial circuit in which the prosecution is pending where the cause for change of venue does not exist. If the same cause for change of venue exists in all other counties in the judicial circuit, the court shall change venue to the nearest county where the same cause for change of venue does not exist.

(2) Single-County Circuit. In a single-county judicial circuit, the court shall change venue to the nearest county where the same cause for change of venue does not exist.

(3) Two Possible Counties. If the court finds that there are two (2) or more adjoining or approximately equivalent counties to which the case might be removed under the provisions of this rule, the court shall determine where the case is to be heard.

(e) Procedure After Venue Change Ordered.

(1) Duties of Clerk in Sending Court. After the court orders a change of venue, the clerk of that court shall:

(A) make a complete transcript of the record and proceedings in the case; and

(B) transmit the transcript, including the indictment and all other papers on file, to the clerk of the receiving court.

(2) Duties of Clerk in Receiving Court. The clerk of the receiving court shall enter the transcript from the sending court on the minutes of the receiving court.

(3) Defendant in Custody. If the defendant is in the custody of the sending county’s sheriff, the sheriff shall–on order of the court–transfer and deliver the defendant to the sheriff of the receiving county to which the venue is changed. The sheriff of the receiving county shall receive and detain the defendant in custody until legally discharged.

(4) Receiving Court. The receiving court:

(A) shall take the case and proceed to trial, judgment, and execution, in all respects as if the indictment or presentment had been returned to that court;

(B) may release the defendant on bail or recognizance; and

(C) may enforce the attendance of the prosecutor and all witnesses by recognizance or bail.

(f) Fines, Forfeitures, and Fees After Venue Change. When venue is changed, all fines and forfeitures in such cases go to the county in which the indictment was returned, and judgment shall be rendered accordingly. The fees of all jurors and witnesses, on being properly certified by the clerk of the receiving court, are a charge to the county in which the indictment or presentment was returned, in like manner as if the trial had not been removed.

Advisory Commission Comment.

This rule was derived from T.C.A. § 40-2201 [now repealed] et seq.; the Law Revision Commission's proposed code, § 40-3-105; and Smith-Hurd Illinois Ann. Stat. Ch. 38, § 114-6(b). This rule does not allow the defendant to choose the county to which the case is removed.